Daily Journal - Apr 23, 2004
LETTER TO THE EDITOR: Courts' Work Deserves Publication
        Kelly McCourt, continuing this exchange ("Justices Don't Game Publication Rules," April 16), makes two claims that are easily refuted. She says no one, including me, has produced "any evidence" that "unpublished decisions are inconsistent with published ones." The claim is odd, because in one sense unpublished decisions are supposed to be inconsistent with published ones: They supposedly don't make law, while published decisions do. See R. 976 (b).
        There's plenty of evidence, though, of unwonted inconsistency. For example, the state Supreme Court since Jan. 1, 2003, has granted review of a remarkable 53 unpublished Court of Appeal decisions (cases that mostly should have been published). In any of those cases in which the high court now reverses, the published decision will be inconsistent with the unpublished one.
        McCourt also asserts that "disagreement with another court's resolution of a legal point invariably leads to publication." The state high court again provides a useful sample. This year, it has granted review of 14 unpublished decisions; in seven, the Court of Appeal reversed the lower court. In those seven cases - and, hence, in half the number reviewed - the Court of Appeal thus disagreed with the lower court's resolution of the legal point. Why weren't those cases published?
        For examples of recent cases that make new law, apply existing law to new facts or otherwise deserve the publication that they didn't get, McCourt might want to look at Cochran v. Tory, 2003 WL 22451378 (Cal. App. Oct. 29, 2003) (prior restraint of defamatory speech about public-figure attorney upheld); Hale v. Provident Life & Acc. Ins. Co., 2003 WL 1510463 (Cal. App. March 25, 2003) (jury could have awarded punitive damages against disability insurer) (30-page opinion); Bennigson v. Alsdorf, 2004 Cal.App.Unpub.LEXIS 3681 (April 15, 2004) (painting allegedly stolen by Nazis was not in California long enough to establish personal jurisdiction for suit here).
        Should these cases, and others like them, be unpublished and uncitable? Our justices and staff attorneys act in good faith, but the present system gives them too much discretion over the decision to publish and too many incentives not to publish. It thus produces a publication rate that's too low, together with a no-citation rule that's indefensible. The admirable work of our justices and staff attorneys deserves to be cited, not buried.
        Stephen R. Barnett